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SCA/7390/1991 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7390 of 1991
with
CIVIL
APPLICATION NO.9447 OF 2006
For
Approval and Signature:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
=================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ? -
YES
2
To
be referred to the Reporter or not ? - YES
3
Whether
their Lordships wish to see the fair copy of the judgment ? - NO
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ? - NO
5
Whether
it is to be circulated to the civil judge ? - NO
=================================================
MAHESH
CHANDRA
Versus
NATIONAL
DAIRY DEVLOPMENT BOARD
=================================================
Appearance
:
MR
MUKUL SINHA for Petitioner(s) : 1,
MR AK CLERK for Respondent(s) :
1,
=================================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
: /04/2011
CAV
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE J.B.PARDIWALA)
By way of
this petition under Article 226 of the Constitution the petitioner
has prayed for the following reliefs:
“19(A) declaring
that Regulation 10 of Officers Appointment, Pay and Allowances,
Regulations 1988, Section 40 and Section 48(2)(i) of National Dairy
Development Board Act, 1987 are volative of Art.14 and 16 of the
Constitution of India and are, therefore, unconstituional, null and
void;
(B) declaring
that the procedure of promotion followed by the respondent-Board is
illegal, unconstitutional and further directing the Board to form a
proper committee to consider the claim of the petitioner on
Seniority-cum-Fitness with effect from April 1983 and subsequent
promotions to the next higher post after four years;
(C) directing
the respondent – Board to pay arrears of wages based on prayer
(B) above with 18 per cent interest;
(D) declaring
that the order of censure imposed on the petitioner vide Annexure D
is illegal, vitiated by non application of mind, contrary to the
principles of natural justice and ultra vires the Regulations of
Officers CDA Regulations 1988 and is therefore, null and void and
further directing the Board not to consider this against the
petitioner for any purposes whatsoever;
(E) declaring
that the refusal to forward the application of the petitioner to
United Nations Volunteers vide Annexuer-J is arbitrary,
discriminatory, irrational and violative of Article 14 and 16 of the
Constitution of India.”
When the
matter was taken up for hearing, learned counsel appearing for the
respondent – National Dairy Development Board brought to our
notice that the petitioner opted for voluntary retirement way back
in the year 2006, which was accepted by the respondent as per
Regulation 20 Clause (1) of the Officers (Appointment, Pay and
Allowances) Regulations 1988. Counsel for the respondent places an
office order dated 10th
October 2006 in this regard for our perusal. It appears that the
petitioner voluntarily retired as Senior Manager, NDDB and at the
time of his voluntary retirement he was posted as Principal, RDTC at
Jallandhar.
Learned
counsel for the petitioner, Mr Mukul Sinha, at the outset, made a
statement that he is not pressing for any relief in terms of
paragraph 19(A) and the first part of paragraph 19(B). He
submitted that he is confining his case to the second part of
relevant clause as contained in paragraph 19(B) of the petition.
Accordingly, the petitioner gave up the prayer so far as the
constitutional validity of Regulation 10 of Officers Appointment
(Pay and Allowances) Regulations 1988 Section 40 and Section
48(2)(i) of National Dairy Development Act. At the same time, the
petitioner also gave up his challenge so far as procedure of
promotion followed by the respondent – Board is concerned.
We are
only examining the claim of the petitioner for promotion on
seniority-cum-fitness basis with effect from April 1983 and
subsequent promotion to the next higher post after four years.
It
deserves to be noted that this is a petition of 1991. The
petitioner also appears to have lost interest in the matter and that
is the reason why no steps were taken by the petitioner to get the
petition adjudicated at the earliest. Since the matter relates to
promotion and since the petitioner insisted for his claim for
promotion with all benefits with retrospective effect, the Division
Bench of this Court way back in the year 2006 had to pass the
following order, which is reproduced hereinbelow:-
“By
this writ application under Article-226 of the Constitution of India,
constitutional validity/vires of Regulation-10 of Officers
Appointment Pay and Allowances Regulations, 1988 made under the
National Dairy Development Board Act,1987, (37 of 1987) is under
challenge. The petitioner is submitting that the widest powers are
given to the Managing Director so also to the Chairman to relax the
requirements relating to educational qualifications, experience, age
etc., and as no guidelines are framed nor Regulation-10 talks of
promotion on the question of comparative merits or on the policy of
seniority-cum-merit or merit-cum-seniority or merit-cum-suitability,
the policy as contained in Regulation-10 is prima facie arbitrary and
adversely affects the promotional right and avenues of the
petitioner. Before entering into the question, we required Mr. Sinha
to tell us that whether the petitioner wants seniority from the
retrospective date or with future effect. Mr. Sinha submitted that
the petitioner is desirous to get promotion with all the benefits
with retrospective effect. We required Mr. Sinha to tell us that why
all others who were junior to the petitioner and were promoted over
the petitioner are not necessary party, because, any grant of relief
in favour of the petitioner is likely to adversely affect them. Mr.
Sinha submits that he be given some time to consider this question.
Put up after six weeks.”
It appears
that after the above referred order was passed, Civil Application
No.9447 of 2006 was preferred by the petitioner for joining officers
who were in active service and were juniors to the petitioner and
who would have been likely to be affected if any orders would have
been passed in favour of the petitioner considering the nature of
the claim and the facts and circumstances of the case.
Unfortunately, it appears that no steps were taken even to pursue
this application as a result of which none of the officers who were
likely to be affected or are likely to be affected are there before
the Court as on today.
It is a
settled law that in cases of promotion and seniority if any orders
which are to be passed are likely to have an effect on officers
other than such officers who are before the Court, no orders can be
passed. Be that as it may, since we are now examining the matter
keeping in mind the relief to which the petitioner has confined we
are not dealing with this issue.
The
petitioner joined services of the respondent as an Apprentice in the
year 1973. In the year 1975 he was confirmed as Assistant Executive
in what was known as Farmers Organization and Animal Husbandry
Department of the respondent-Board. After four years ie. during
April 1979 he was promoted as Project Executive which post he held
for a period of 12 years and which he was holding at the time of
filing
of the petition. It is his case that his Confidential Reports
are good and he performed several challenging tasks to the entire
satisfaction of his superiors from 1979 onwards and there was
nothing adverse against the petitioner. It is his grievance as
raised in the petition that the respondent-Board is following
absolutely irrational policies so far as promotions are concerned
which is mainly of pick-and-choose nature. The promotions are being
given without any promotion committee being constituted. The
performance is being evaluated by the Committee without any expert
or outside assistance. He has also raised a grievance that several
employees who were not interviewed by the Committee have been
promoted while in some cases the employees were required to face the
interview with the Committee of Two Managing Directors. It is his
case that there is no consistent policy so far as promotions are
concerned. It is his case that the petitioner was overlooked for
promotion since 1983. He has placed on record chart of other
similarly placed colleagues who have superseded the petitioner. He
has tried to demonstrate that at least three colleagues who were
juniors have been promoted during the year 1984 while there were
large number of promotions during September 1988. It is his case
that there was no reason for the respondent to deny the promotion to
the petitioner.
Per
contra, learned counsel for the respondent-Board submitted that the
petitioner, after joining the Board in the year 1973 as an
Apprentice, rose to the position of Project Executive with effect
from 2nd
April 1979 and was subsequently appointed by way of promotion to the
level of Senior Executive with effect from 1.1.1983. Learned
counsel for the Board submitted that the petitioner while
functioning as
in-charge RDTC, Siliguri, committed certain misconducts/lapses
which were reported to the higher authorities and after giving an
opportunity to show-cause in this regard a charge-sheet was served
upon the petitioner. A minor penalty of censure was inflicted upon
the petitioner as per the provisions of NDDB Officers (Conduct,
Discipline and Appeal) Regulations, 1988. Learned counsel for the
respondent-Board submitted that the petitioner himself admitted when
he replied to the charge-sheet dated 8th
June 1989 that there has been some procedural lapses on his part.
It is also brought to our notice that after the order of imposition
of minor penalty of censure an appeal was preferred and the
appellate authority also confirmed the order of imposition of minor
penalty vide order dated 29th
October 1991.
So far as
the grievance of the petitioner that he was overlooked in the matter
of his promotion since 1983 is concerned, the respondent has tried
to explain this aspect by stating as under in the
affidavit-in-reply:
“Further,
it is not true that the case of the petitioner is overlooked since
1983 as alleged. In fact, he was promoted as an Executive in the
year 1979 and thereafter he has been considered for higher positions
i.e. as Sr. Executive and he was not found fit for the said higher
position. He was considered for promotion in 1989 and was not found
fit for higher position. In response to the respondent’s circular
dtd. 2.3.1991 for the recruitment of Sr. Executive (Programme
Development & Planning) through direct recruitment, the petitione
rherein also applied for the said post and he was not selected for
the said post, much less to say he was not even short listed after
written examination, Group Discussion and interview. Ultimately, the
petitioner was promoted/appointed to the post of Sr Executive in the
scale of Rs.3300-100-3500-EB125-4500 -EB-125-5000 (present scale
Rs.11200-225-13450-EB-225-16125), w.e.f. 1.6.1993. Thus, the
petitioner after having availed the benefits and being reaping the
benefits of promotions as provided under Regulation 10 of the said
Regulations, he is estopped from raising objections to the same. The
allegation that the petitioner is discriminated against others who
are favoured without any rhyme or reason is not only untrue but is
made by an oblique purpose to make out a case in his favour.”
Having
heard learned counsel for the parties and considering the entire
factual background of the matter, we are of the view that the
petitioner is not entitled to any relief now at this stage of the
matter. We are examining the matter considering and keeping in mind
the aspect that during the pendency of the petition he was promoted
and he also opted for voluntary retirement. He is no longer in
service since 2006. Besides, most importantly, the petitioner
failed to take appropriate steps to bring on record all those
persons who were likely to be affected if any relief would have been
granted in favour of the petitioner. It is a settled law that no
one has vested right to promotion or a seniority, but an officer has
an interest to seniority acquired by working out the rules. Right
to be considered for promotion is a rule prescribed by conditions of
service. Promotion is always considered
keeping in mind the character role of the employee
as well as confidential reports. Chances of promotion are not
conditions of service.
Keeping in
mind the settled position of law, we are of the view that it cannot
be said that the petitioner was overlooked so far as his promotion
is concerned. The material on record indicates that the petitioner
was considered for promotion, but was not found fit for the same.
Material on record also indicates that he was visited with a penalty
of censure for some lapses and the order of penalty was further
confirmed by the appellate authority. We are satisfied with what
has been explained by the respondent-Board in this regard. Whenever
promotion to a higher post is to be made on the basis of merit no
officer can claim such promotion as a matter of right by virtue of
seniority alone with effect from the date on which his juniors are
promoted. It is not sufficient that in his confidential reports it
is recorded that his services are satisfactory. An officer is
capable of discharging his duties satisfactorily, but he may not be
fit for higher post. It is the duty of the management to consider
the case of the officer concerned on the basis of the relevant
materials. We are of the view that the case of the petitioner was
considered at the relevant point of time and on the basis of the
relevant materials the management did not deem fit to promote the
petitioner. No illegality can be said to have been committed by
the respondent-Board in this regard.
In this
view of the matter, we do not find any merit in the petition and the
petition deserves to be dismissed. The same is hereby dismissed.
No order as to costs. Rule is discharged.
In view of
the order passed in the petition dismissing the same, Civil
Application does not survive and the same stands disposed of
accordingly.
(S.J.
Mukhopadhaya, CJ.)
(J.B.
Pardiwala, J.)
*mohd
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